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TMI Blog2002 (7) TMI 833X X X X Extracts X X X X X X X X Extracts X X X X ..... rts below in both the suits are accordingly set aside. Suit No. 58 of 69 which was filed by covenantors for specific performance of the agreement deed (Ext. 12) is dismissed with costs throughout whereas suit No. 58 of 71 which had been filed for declaration of the rights of the vendees over the land in suit is decreed with costs throughout. The vendees are accordingly declared owners of the land in suit by virtue of the sale deed which was executed by the vendors transferring the land in suit in their favour of 7.5.69. 3. The factual back drop of the case leading to the present proceeding may be stated thus: 4. The appellants herein filed suit No. 58/1969 in the Court of the Civil Judge, Mathura against the respondents herein seeking the following main relief: (A) That the suit of the plaintiffs for specific performance of the contract for sale on the basis of agreement for sale dated 19.4.1969 be declared in favour of the plaintiffs and against the defendants, and it be directed in the decree that all the defendants shall execute the sale deed in favour of the petitioners after taking Rs. 2,000/- (balance), in respect of the land details whereof have been given at the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... unt as advance money. It was the further case of the said defendants that they had executed the sale deed in favour of defendants 3 and 4 openly and to the knowledge of the plaintiffs; that the so called agreement was forged and fictitious and the thumb impression therein were obtained by fraud and defendants 1 and 2 did not receive any amount towards consideration. 7. Defendants 3 and 4 filed separate written statements countering the averments made in the plaint. They also took the stand that the so called agreement for sale said to have been executed by the defendants 1 and 2 was a forged and fictitious document and it was doubtful that they bore the signature and thumb impressions of defendants 1 and 2. It was also averred in the written statement that the plaintiff by exerting influence on defendants 1 and 2 and by playing fraud on them got the thumb impression on blank stamp paper after the sale deed was executed in their (defendants 3 and 4) favour. Defendants 3 and 4 asserted in para 9 of the statement that one of the witnesses of the so called agreement i.e. Harchandi happens to be father in law in distant relationship and they are very intimate to each other, the other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eement of sale and obtained an ad-interim injunction. The injunction order was vacated by the civil Judge on 29.7.1969. In appeal the District Judge by the order dated 2.8.1969 issued direction for maintenance of status quo. In paragraphs 18 to 24 the plaintiffs made averments regarding injunction against the proceeding under Section 145 Cr.P.C. on the basis of the police report dated 23.12.1969 of the apprehended breach of peace; the preliminary order passed by the Sub-Divisional Magistrate, Chhata on 30.12.1969 and the order dated 21.3.1970 attaching the land, and the order passed by the learned Magistrate on 9.11.1970 referring the dispute to the Civil Court under Section 146 of the Criminal Procedure Code. In para 23 of the plaint it is stated that on 12.5.1971 learned Munsif, Mathura gave his finding holding that defendants 1 to 5 were in possession of the land in dispute on 13.12.1969 and within two months before the said date. The plaintiff apprehending that on the basis of the finding of the Munsif the Sub-Divisional Magistrate is likely to deliver the possession of the land in dispute to defendants 1 to 5 by 3.6.1971, filed a suit for declaration and injunction. 9. In t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Section 41 of Transfer of Property Act and/or Section 19 of the Specific Relief Act ? In the impugned judgment the learned Judge has observed that: Shri Murlidhar, learned Senior Advocate who appeared for appellants (vendees) in both the appeals has not given emphasis to challenge the finding of fact which have been recorded by the courts below for decreeing the suit No. 58 of 69 and for dismissing Suit No. 58 of 71 against which review can be legally sought by the appellants in substantial question of law having been either wrongly decided or left undecided though it was required to be decided for having arisen in the case. It has been further observed in the judgment that Shri Murlidhar also did not press the appeal on the question of law on which the appeal was admitted for hearing by this court at the stage of Order 41 Rule 11 of the Code of Civil Procedure . After discussing the merit of the question of applicability of Section 41 of the Transfer of Property Act, the High Court observed On the findings of fact finally settled by the courts below, concedes Mr. Murlidhar also, vendees cannot invoke the provisions of Section 41 of the Transfer of Property Act. Protection ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o give authenticity to the said agreement of sale. Then the High Court considered the question whether the interpolation made in the document was a material alteration or not? The High Court took note of the decisions of this Court in the case of M.S. Anirudhan v. Thomco's Bank Ltd. [1990]2SCR410 which was cited by the learned counsel for appellants before the Court and the case of Kaliana Gounder v. Palani Gounder and Anr. [1970]2SCR455 which was cited by the learned counsel for the respondent. The High Court also took note of the rule laid by the Supreme Court to the effect: The Supreme Court, however, proceeded to lay down the law on the subject presuming that the change complained of by the defendant was made subsequently by an unilateral act of the plaintiff or on his behalf. The Supreme Court held that since the additions made in the instrument were inconsequential as it merely expresses that which was implied by law in the deed as originally written, or which carries out the intention of the parties to the agreement already apparent on the face of the deed and that the alteration does not otherwise prejudice the party who is liable under the agreement deed. The alter ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion is one which varies the rights, liabilities, or legal position of the parties as ascertained by the deed in its original state, or otherwise varies the legal effect of the instrument as originally expressed, or reduces to certainty some provision which was originally unascertained and as such void, or which may otherwise prejudice the party bound by the deed as originally executed. The effect of making such an alteration without the consent of the party bound is exactly the same as that of cancelling the deed. In paragraph 1383 at page 555 it is observed: An alteration made in a deed, after its execution, in some particular which is not material does not in any way affect the validity of the deed; and this is equally the case whether the alteration was made by a stranger or by a party to the deed. Thus the date of a deed may well be filled in after execution; for a deed takes effect from the date of execution, and is quite good though it is undated. So, also, the names of the occupiers of land conveyed may be inserted in a deed after its execution, where the property assured was sufficiently ascertained without them. It appears that an alteration is not material whi ..... X X X X Extracts X X X X X X X X Extracts X X X X
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